Citation Nr: 0711045
Decision Date: 04/13/07 Archive Date: 04/25/07
DOCKET NO. 03-01 052 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan
THE ISSUES
1. Entitlement to service connection for arthritis of the
knees.
2. Entitlement to service connection for arthritis of the
low back.
3. Entitlement to service connection for residuals of
pneumonia.
4. Entitlement to service connection for impaired hearing.
5. Entitlement to service connection for a perforated left
ear drum, to include as secondary to claimed residuals of
pneumonia.
6. Entitlement to service connection for a left shoulder
disability.
7. Entitlement to service connection for residuals of
frostbite to the feet.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
K.A. Kennerly, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1953 to
December 1954.
This appeal comes before the Board of Veterans' Appeals
(Board) from a May 2000 RO decision. The veteran testified
before the Board in March 2005. In June 2006, the Board
remanded the case for additional development.
FINDINGS OF FACT
1. The veteran did not engage in combat during his active
service.
2. Arthritis of the knees is not etiologically related to
service.
3. Arthritis of the low back is not etiologically related to
service.
4. The veteran was treated for pneumonia during service, but
no residuals of pneumonia are currently shown.
5. Impaired hearing has not been shown to be etiologically
related to service, nor may it be presumed within one year of
service discharge.
6. The veteran has not been definitively diagnosed with a
perforated left ear drum; a left eardrum disability is not
etiologically related to service, nor is it related to the
residuals of pneumonia.
7. The veteran's left shoulder disability is not
etiologically related to service.
8. There is no evidence that the veteran experienced
frostbite while in service. His mononeuropathy is of unknown
origin and is not etiologically related to service.
CONCLUSIONS OF LAW
1. Knee disabilities were not incurred in or aggravated by
service. 38 U.S.C.A. §§ 1101, 1110, 1154 (West 2002); 38
C.F.R. §§ 3.303, 3.304 (2006).
2. A low back disability was not incurred in or aggravated
by service. 38 U.S.C.A. §§ 1101, 1110, 1154 (West 2002); 38
C.F.R. §§ 3.303, 3.304 (2006).
3. Claimed residuals of pneumonia were not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1154 (West
2002); 38 C.F.R. § 3.303, 3.304 (2006).
4. Hearing loss disability was not incurred in or aggravated
by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154,
7104 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2006).
5. A perforation of the left ear drum was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1154, 7104
(West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2006).
6. A left shoulder disability was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1154 (West
2002); 38 C.F.R. §§ 3.303, 3.304 (2006).
7. Frostbite of the feet was not incurred in or aggravated
by service. 38 U.S.C.A. §§ 1101, 1110, 1154 (West 2002); 38
C.F.R. § 3.303, 3.304 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
On receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2006). The
notice must: (1) inform the claimant about the information
and evidence not of record that is necessary to substantiate
the claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim, or something to the effect that the
claimant should "give us everything you've got pertaining to
your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112,
120-21 (2004).
The RO sent correspondence in November 1999, November 2003
and in June 2005; a rating decision in April 2002 ; a
statement of the case in November 2002; and supplemental
statements of the case in April 2003 and April 2006. The
above documents discussed specific types of evidence, the
applicable legal requirements, the evidence considered, the
pertinent laws and regulations, and the reasons for the
decisions. VA has made all efforts to notify and to assist
the appellant with regard to the evidence obtained, the
evidence needed, the responsibilities of the parties in
obtaining the evidence, and the general notice of the need
for any evidence in the appellant's possession. The Board
finds that any defect with regard to the timing or content of
any of the notices sent prior to the RO's initial
adjudication (the April 2002 RO decision) or even the final
RO adjudication (the April 2006 supplemental statement of the
case is harmless. The Board finds that even if there is any
defect with regard to the timing or content of any of the
notices sent prior to the RO's initial adjudication, that
defect is harmless because of the thorough and informative
notices provided throughout the adjudication and because the
appellant has had a meaningful opportunity to participate
effectively in the processing of the claims with RO
adjudication after receipt of the required notice. VA
effectively complied with all of the required elements under
its duty to notify claimants prior to the last RO
adjudications.
Moreover, the above documents discussed specific types of
evidence, the applicable legal requirements, the evidence
considered, the pertinent laws and regulations, and the
reasons for the decisions. VA made all efforts to notify and
to assist the veteran with regard to the evidence obtained,
the evidence needed, the responsibilities of the parties in
obtaining the evidence, and the general notice of the need
for any evidence in the appellant's possession. The Board
finds that even if there is any defect with regard to the
timing or content of any of the notices sent prior to the
RO's initial adjudication, that defect is harmless because of
the thorough and informative notices provided throughout the
adjudication and because the veteran has had a meaningful
opportunity to participate effectively in the processing of
the claim with an adjudication of the claim by the RO
subsequent to receipt of the required notice. Indeed, at the
September 2006 hearing, the Board methodically attempted to
elicit evidence from the veteran regarding his claim. VA
effectively complied with all of the required elements under
VA's duty to notify claimants prior to the last adjudication
here (the April 2006 supplemental statement of the case).
See Mayfield v. Nicholson, 20 Vet. App. 537 (2006)
(supplemental statement of the case constituted
readjudication), on remand from, 444 F.3d 1328 (Fed. Cir.
2006), rev'g on other grounds, 19 Vet. App. 103 (2005); see
also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
Indeed, the veteran has not demonstrated how any defective
notice has prejudiced him in the essential fairness of the
adjudication. Thus, there has been no prejudice to the
veteran, and any defect in the timing or content of the
notices has not affected the fairness of the adjudication.
See Overton v. Nicholson, 20 Vet. App. 427 (2006); Mayfield
v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other
grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically
declining to address harmless error doctrine), on remand,
20 Vet. App. 537 (2006) (discussing Board's ability to
consider "harmless error"); see also Dingess v. Nicholson,
19 Vet. App. 473 (2006); cf. Locklear v. Nicholson, 20 Vet.
App. 410, 415-16 (2006) (duty to notify does not extend in
perpetuity or impose duty on VA to provide notice on receipt
of every piece of evidence or information). Thus, VA
satisfied its duty to notify the veteran.
Also, VA has obtained all relevant, identified and available
evidence needed for adjudication of the claim and has
notified the veteran of any evidence that could not be
obtained.
Unfortunately, as detailed in several documents and efforts
to reconstruct evidence, the veteran's service medical
records appear to have been destroyed in the 1973 fire at the
National Personnel Records Center in St. Louis, Missouri. In
Cuevas v. Principi, 3 Vet. App. 542, 548 (1992), the Court
held that the duty to assist is heightened when the service
medical records are presumed destroyed and includes an
obligation to search alternative forms of medical records
that support the veteran's case. In accordance with Cuevas,
VA has afforded the veteran every opportunity to assist in
the development of his claim.
The Board remanded this case in June 2005 to seek alternate
sources of medical records (including morning reports); to
seek treatment records from the widow of one of the veteran's
private physicians; and to seek again to obtain records from
private medical providers. The record reflects that none of
those records have been obtained, despite the RO's best
efforts to do so, and there is no indication that continued
searches would yield different results. Indeed, a recent
attempt to reconstruct the veteran's service medical records
through sick reports produced a reply of "No search
possible" because the Army did not create sick reports after
March 1953. The record also contains an August 2003 letter
from the National Personnel Records Center to a Senator
indicating that a search of data from the Army's Office of
the Surgeon General had located no entries for the veteran.
Indeed, the veteran has clearly stated that several doctors
who had treated him in the 1950s after separation from
service (Drs. Vivriski, McGarvey, Kilgore, and Anderson) are
all deceased and that an additional doctor (Dr. O'Connor) is
now out of the country. The veteran has likewise been unable
to obtain any of these records on his own behalf.
Regrettably, if these records are unavailable, further
attempts to obtain or reconstruct those records would be
futile.
In the Board's June 2005 remand, the RO was instructed to
schedule the veteran for appropriate VA examinations to
assess the nature and probable etiology of any of his claimed
disabilities, if any additional evidence was received as a
result of these requests and if it was deemed necessary by
the RO. Here, there was no evidence received as a result of
the RO's search for records and the ordering of VA
examinations was not strictly mandated. Thus, the RO has
complied with the Board's June 2006 remand. Cf. Stegall v.
West, 11 Vet. App. 268, 271 (1998) (requiring compliance with
appellate remand orders).
Thus, VA has satisfied both the notice and duty to assist
provisions of the law. The Board now turns to the merits of
the claims.
Service connection may be granted to a veteran for disability
resulting from a disease or injury incurred in or aggravated
by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
For the showing of chronic disease in service, there must be
a combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity at the time. If chronicity in service is not
established, evidence of continuity of symptoms after
discharge is required to support the claim. 38 C.F.R. §
3.303(b). Service connection may also be granted for a
disease diagnosed after discharge when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
In addition, service connection may be presumed for certain
chronic diseases, including organic disease of the nervous
system (such as sensorineural hearing loss) and arthritis,
that are manifested to a compensable degree within one year
after separation from service. 38 U.S.C.A. §§ 1101, 1112; 38
C.F.R. §§ 3.307, 3.309(a).
To establish service connection for a claimed disorder, there
must be (1) medical evidence of current disability; (2)
medical, or in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the current disability. See
Hickson v. West, 12 Vet. App. 247, 253 (1999). Such
determination is based on an analysis of all the evidence of
record and evaluation of its credibility and probative value.
See Baldwin v. West, 13 Vet. App. 1, 8 (1999).
The veteran will be considered to have been in sound
condition when examined, accepted and enrolled for service,
except as to defects, infirmities, or disorders noted at
entrance into service, or where clear and unmistakable
(obvious or manifest) evidence demonstrates that an injury or
disease existed prior thereto and was not aggravated by such
service. Only such conditions as are recorded in examination
reports are to be considered as noted. 38 U.S.C.A. §1111;
38 C.F.R. § 3.304(b).
A disability which is proximately due to or the result of a
service-connected disease or injury shall be service
connected. When service connection is thus established for a
secondary condition, the secondary condition shall be
considered a part of the original condition. See 38 C.F.R. §
3.310 (2006); see also Harder v. Brown, 5 Vet. App. 183, 187
(1993).
In order to prevail on the issue of secondary service
connection, the record must show: (1) evidence of a current
disability; (2) evidence of a service-connected disability;
and (3) medical nexus evidence establishing a connection
between the service-connected disability and the current
disability. See Wallin v. West, 11 Vet. App. 509, 512
(1998).
When there is an approximate balance of positive and negative
evidence after considering all information, lay and medical
evidence of record in a case regarding any issue material to
the determination of a matter, which does not satisfactorily
prove or disprove the claim, the benefit of the doubt will be
given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R.
§ 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53
(1990).
The veteran has alleged that his claimed disabilities
resulted from service, including from combat. Although the
Board will address each disability more specifically below,
the Board initially discusses the veteran's allegations of a
relationship to combat.
When an injury or disease is alleged to have been incurred or
aggravated in combat, such incurrence or aggravation may be
shown by satisfactory lay evidence, consistent with the
circumstances, conditions, or hardships of combat, even if
there is no official record of the incident. 38 U.S.C.A. §
1154(b); 38 C.F.R. § 3.304(d) (2006). In the case of any
veteran who engaged in combat with the enemy in active
service during a period of war, VA shall accept as sufficient
proof of service connection of any disease or injury alleged
to have been incurred in or aggravated by such service
satisfactory lay or other evidence of service incurrence or
aggravation of such injury or disease, if consistent with the
circumstances, conditions, or hardships of such service,
notwithstanding the fact that there is no official record of
such incurrence or aggravation in such service. 38 U.S.C.A.
§ 1154(b); see Collette v. Brown, 82 F.3d 389 (Fed.Cir.
1996). However, the reduced evidentiary burden only applies
to the question of service incurrence, and not to the
question of either current disability or nexus to service,
both of which generally require competent medical evidence.
See generally, Brock v. Brown, 10 Vet. App. 155, 162 (1997);
Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v.
Brown, 8 Vet. App. 459, 464 (1996).
The ordinary meaning of the phrase "engaged in combat with
the enemy," as used in 38 U.S.C.A. § 1154(b), requires that
a veteran "have participated in events constituting an
actual fight or encounter with a military foe or hostile unit
or instrumentality." VAOPGCPREC 12-99 (Oct. 18, 1999)
(cited at 65 Fed. Reg. 6,256 (Feb. 8, 2000)). The
determination of whether a veteran engaged in combat with the
enemy necessarily must be made on a case-by-case basis. The
absence from a veteran's service records of any ordinary
indicators of combat service may, in appropriate cases,
support a reasonable inference that he did not engage in
combat; such absence may properly be considered "negative
evidence" even though it does not affirmatively show that he
did not engage in combat. Ibid. There is no statutory or
regulatory limitation on the types of evidence that may be
used in any case to support a finding that a veteran engaged
in combat with the enemy. Hence, the Board must consider all
submissions. Any evidence which is probative of that fact
may be used by a veteran to support an assertion of combat
with the enemy, and VA must consider any such evidence in
connection with all other pertinent evidence of record. The
"benefit-of-the-doubt rule" (under 38 U.S.C.A. § 5107(b))
applies to determinations of whether a veteran engaged in
combat with the enemy for purposes of 38 U.S.C. § 1154(b) in
the same manner as it applies to any other determination
material to resolution of a claim for VA benefits. VA must
evaluate the credibility and probative value of all pertinent
evidence of record and determine whether there is an
approximate balance of positive and negative evidence or
whether the evidence preponderates either for or against a
finding that the veteran engaged in combat. If there is an
approximate balance of positive and negative evidence, the
issue must be resolved in the veteran's favor.
VAOPGCPREC 12-99.
Even accepting that the veteran's claimed in-service
incidents took place, there is no evidence of nexus relating
these incidents to his current disabilities and impairments.
Furthermore, per the appellant's March 2005 hearing
testimony, the veteran's alleged falls down the stairs and
pneumonia occurred while he was in Indiana during basic
training, and did not occur during combat. Therefore, any
residuals to the veteran's back, knees, lungs, left shoulder,
and ears from these incidents are not entitled to this
presumption.
As for the fall while on patrol in Korea and the claimed
frostbite, the Board notes that there is no evidence in the
record that the claimed injuries are the result of combat,
nor has the veteran alleged specifically that these incidents
were the result of combat with the enemy. A review of the
official military documentation contained in his claims file
is unremarkable for evidence suggesting he actually engaged
in combat against enemy forces, as contemplated by VA
regulations. There is no evidence in the record that the
appellant received any combat decorations or other citations
indicating that he engaged in combat with the enemy, nor has
he alleged receiving any medals indicative of this type of
service. As there is no other sufficient indication of
combat service, the Board finds that he did not "engage in
combat." Consequently, the evidentiary presumption of 38
U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f) does not apply.
See VAOPGCPREC 12-99.
Arthritis of the Knees and Low Back
The veteran contends that he injured his back in April 1953
when he fell down a flight of stairs, resulting in a light
duty assignment. He stated that he again fell down a hill
while on patrol in Korea, and that he was subsequently sent
to a field hospital, had X-rays taken, was prescribed
medication, and returned to his unit.
Through his representative's August 2006 statement, the
veteran also claims that the December 2002 statement of his
private physician, which is based on his recollections of
prior treatment in 1968-1969, provides details of long term
treatment for arthritis of the low back and knees. Although
this physician does state in his December 2002 letter that he
treated the veteran during that time frame, and that the
veteran's problems were chronic, his letter does not relate
them directly to the veteran's active service. Furthermore,
as all written records related to treatment have been
destroyed, this physician's opinion is based solely on his
thirty-four year old recollections, as well as those of the
veteran. The Board is not bound to accept medical opinions
which are based on history supplied by the veteran where that
history is unsupported or based on inaccurate factual
premises. See Black v. Brown, 5 Vet. App. 177 (1993); Swann
v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet.
App. 458 (1993); Guimond v. Brown, 6 Vet. App. 69 (1993).
Here, there is no evidence in the record that supports the
veteran's recounting of events.
In addition to this physician's letter, the record contains
private physical therapy notes showing that the veteran
received treatment for his back and neck in 1986, as well as
medical notes showing that he received treatment at a private
pain clinic in June and July of 1997. X-rays of the
veteran's knees taken in May 2003 showed moderate
osteoarthritis of the right knee and arthritis in the left
knee that was much more advanced. However, the veteran's
physician retained none of the earlier treatment records and
there was no mention made of the etiology of those conditions
in the statement he submitted to VA on the appellant's
behalf. None of the veteran's other medical records relate
his back and knee arthritis to injuries he claims to have
sustained in service. Other than the veteran's accounts of
falling three times while in service, there is no evidence
connecting his back and knee arthritis to his time in
service.
The veteran is not competent to establish that these falls
are the cause of his back and knee arthritis many years
later, which is a medical determination requiring medical
expertise. In general, lay witnesses, such as the veteran,
are only competent to testify as to factual matters, such as
what symptoms an individual was manifesting at a given time;
however, issues involving medical causation or diagnosis
require competent medical evidence. Espiritu v. Derwinski, 2
Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91
(1993). There is no other medical evidence in the record
that supports the veteran's contentions as to causation or
nexus for these impairments.
Accordingly, the Board concludes that the preponderance of
the evidence is against the claim for service connection, and
the benefit of the doubt rule enunciated in 38 U.S.C.A. §
5107(b) is not for application. In this case, for the
reasons and bases discussed above, a reasonable doubt does
not exist regarding the veteran's claims that his current
arthritis of the knees and low back are related to service.
There is not an approximate balance of evidence.
Residuals of Pneumonia
In his February 2000 statement, the veteran claimed that
while in Indiana during basic training, he was picked up from
his barracks in March 1953 because he was unable to respond
and had a high fever. He stated that he was taken to the
hospital base camp and received treatment in the hospital for
at least three weeks. Two "buddy statements" from the
veteran's fellow servicemen have been included as part of the
record, lending support to his claim that he had pneumonia
for three weeks while in service. Even giving the veteran
the benefit of the doubt that this event occurred, there is
no evidence in the record that he experiences residuals from
the pneumonia he contracted while in service.
It is now well-settled that in order to be considered for
service connection, a claimant must first have a disability.
See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992);
Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service
connection may not be granted unless a current disability
exists). Further, symptoms alone, without a finding of an
underlying disorder, cannot be service-connected. See
Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).
The veteran related that his pneumonia symptoms had resolved
and that there had been no episodes of shortness of breath,
dyspnea on exertion, or pulmonary infections since his time
in service. There is therefore no evidence of a current
diagnosis of residuals from pneumonia. Records of pulmonary
function testing performed in April 1999 were normal except
for a mildly decreased DLCO value. His chest x-ray was
normal and his chest examination was clear to auscultation
and percussion.
As there is no current diagnosis of residuals from pneumonia,
there is naturally no medical opinion that purports to relate
such a diagnosis to the veteran's military service. The
primary evidence in support of the veteran's claim comes from
his own contentions. But while he is competent to report on
his symptoms, as a lay person without medical training, he is
not competent to relate those symptoms to a particular
diagnosis or specific etiology. See Espiritu, 2 Vet. App. at
494-5.
Accordingly, the Board concludes that the preponderance of
the evidence is against the claim for service connection, and
the benefit of the doubt rule enunciated in 38 U.S.C.A. §
5107(b) is not for application. In this case, for the
reasons and bases discussed above, a reasonable doubt does
not exist regarding the veteran's claim that his alleged
residuals of pneumonia are related to service. There is not
an approximate balance of evidence.
Bilateral Hearing Loss
The veteran alleges that his current bilateral hearing loss
is the result of excessive noise exposure in service.
For VA purposes, impaired hearing is considered a disability
when the auditory threshold in any of the frequencies 500,
1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or
when the auditory thresholds for at least three of the
frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26
decibels or greater; or when speech recognition scores using
the Maryland CNC Test are less than 94 percent. 38 C.F.R. §
3.385.
[W]here the regulatory threshold requirements for
hearing disability are not met until several years
after separation from service, the record must
include evidence of exposure to disease or injury
in service that would adversely affect the
auditory system and post-service test results
meeting the criteria of 38 C.F.R. § 3.385. . . .
For example, if the record shows (a) acoustic
trauma due to significant noise exposure in
service and audiometric test results reflecting an
upward shift in tested thresholds in service,
though still not meeting the requirements for
"disability" under 38 C.F.R. § 3.385, and (b)
post-service audiometric testing produces findings
meeting the requirements of 38 C.F.R. § 3.385,
rating authorities must consider whether there is
a medically sound basis to attribute the post-
service findings to the injury in service, or
whether they are more properly attributable to
intercurrent causes.
See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).
Where a veteran served for at least 90 days during a period
of war or after December 31, 1946, and manifests
sensorineural hearing loss to a degree of 10 percent or more
within one year from the date of termination of such service,
such disease shall be presumed to have been incurred or
aggravated in service, even though there is no evidence of
such disease during the period of service. 38 U.S.C.A. §§
1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
As noted above, the veteran's service medical records are
unavailable, rendering it impossible to determine his pre-
service hearing levels. There is also no record of post-
service treatment prior to 1998. With regard to the decades-
long evidentiary gap in this case between active service and
the earliest 1998 complaints, the Board notes that this
absence of evidence constitutes negative evidence tending to
disprove the claim that the veteran had an injury in service
which resulted in chronic disability or persistent symptoms
thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998),
aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed.
Cir. 2002) (noting that the definition of evidence
encompasses "negative evidence" which tends to disprove the
existence of an alleged fact). Thus, the lack of any
objective evidence of continuing hearing loss complaints,
symptoms, or findings for 44 years between the period of
active duty and the medical reports dated in 1998 is itself
evidence which tends to show that hearing loss did not have
its onset in service or for many years thereafter.
A prolonged period without medical complaint can be
considered, along with other factors concerning a claimant's
health and medical treatment during and after military
service, as evidence of whether an injury or a disease was
incurred in service which resulted in any chronic or
persistent disability. See Maxson v. Gober, 230 F.3d 1330,
1333 (Fed. Cir. 2000). The Board must consider all the
evidence including the availability of medical records, the
nature and course of the disease or disability, the amount of
time that elapsed since military service, and any other
relevant facts in considering a claim for service connection.
Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir.
2000) (the absence of medical records during combat
conditions does not establish absence of disability;
suggesting that the absence of medical evidence may establish
the absence of disability in other circumstances). Thus,
when appropriate, the Board may consider the absence of
evidence when engaging in a fact-finding role. See Jordan v.
Principi, 17 Vet. App. 261 (2003).
The only audiogram of record is from the April 1999 VA
examination. Upon authorized audiological evaluation, pure
tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
40
40
60
60
65
LEFT
35
30
60
65
65
Speech audiometry revealed speech recognition ability of 92
percent in the right ear and of 88 in the left ear. The
examiner noted that the veteran reported having substantial
noise exposure from firearms while in service, as well as
hospitalizations with pneumonia and ear infections. However,
the examiner expressed no opinion as to the etiology of the
veteran's mild to moderately severe bilateral sensorineural
hearing loss.
At a subsequent VA examination in April 1999, there was no
indication that the veteran's bilateral sensorineural hearing
loss developed within the first year after the he was
discharged from service. A review of all of the evidence of
record does not reveal any competent medical evidence of
sensorineural hearing loss until many years after service and
there is no nexus statement relating his current hearing loss
back to his time in active service.
Accordingly, the Board concludes that the preponderance of
the evidence is against the claim for service connection, and
the benefit of the doubt rule enunciated in 38 U.S.C.A. §
5107(b) is not for application. In this case, for the
reasons and bases discussed above, a reasonable doubt does
not exist regarding the veteran's claim that his current
bilateral hearing loss is related to service. There is not
an approximate balance of evidence.
Perforated Left Eardrum
The veteran alleges that he currently has a perforated left
eardrum, and that such condition is secondary to his claimed
residuals of pneumonia in service. He has not alleged that
this condition is directly related to service. However, the
veteran's claim fails for both direct and secondary service
connection, as he has not demonstrated that his has a current
disability.
Affording the veteran the benefit of the doubt that he
suffered from pneumonia in service, there is still no
objective evidence that his left eardrum was perforated as
the result of a high fever while in service, nor is it clear
from the record whether he has a perforated eardrum at all.
After listening to the veteran's reports of having his ears
"plugging up" and improving when he "pops" them, examining
the veteran's eardrums, and observing the tympanogram shapes,
the VA examiner in April 1999, opined that the veteran might
have an Eustachian tube dysfunction, which might cause
temporary conductive overlays. He did not relate this
dysfunction to the veteran's service, despite the fact that
the veteran had reported substantial noise exposure from
firearms, ear infections, and pneumonia during his military
service. Medical opinions that are speculative, general, or
inconclusive in nature cannot support a claim. See Obert v.
Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet.
App. 459, 462 (1996); Libertine v. Brown, 9 Vet. App. 521,
523 (1996). Here, the examiner's conclusion is not at all
definitive.
During the second VA examination in April 1999, the veteran
reported that he had never been treated for ear infection or
trauma, denied having recurrent ear infections, reported no
significant pain, and reported that he had not had a surgical
repair of his eardrum. The examiner found that the veteran's
left ear was grossly within normal limits on external
examination, but that there was evidence of chronic scarring
in the inferior aspect of the tympanic membrane. However,
this examiner did not express an opinion as to the cause of
this scarring, state that it was due to a ruptured tympanic
membrane, or relate it directly to the veteran's service.
Additionally, there is also no opinion that the scarring is
the secondary result of the veteran's claimed high fever
while in service. In the absence of an identified diagnosis
of a perforated left eardrum, service connection may not be
granted, particularly where there is also no medical
conclusion linking the veteran's left ear symptoms to his
active service. See Rabideau, supra.
Accordingly, the Board concludes that the preponderance of
the evidence is against the claim for service connection, and
the benefit of the doubt rule enunciated in 38 U.S.C.A. §
5107(b) is not for application. In this case, for the
reasons and bases discussed above, a reasonable doubt does
not exist regarding the veteran's claim that his alleged
perforated left eardrum is related to service. There is not
an approximate balance of evidence.
Left Shoulder Disability
The veteran alleges that he injured his left shoulder in one
of the falls that he contends are the cause of his back
problems. The April 1999 VA examiner indicated that details
of the alleged fall were difficult to obtain from the
veteran. However, he did report having chronic left shoulder
pain with decreased range of motion from discharge until
approximately 1995. At that time, he underwent surgical
repair, and has had full range of motion with no pain and no
limitations on the left shoulder since that time.
A disorder may be service connected if the evidence of
record, regardless of its date, shows that the veteran had a
chronic disorder in service or during an applicable
presumptive period, and that the veteran still has such a
disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet.
App. 488, 494-95 (1997). Such evidence must be medical
unless it relates to a disorder that may be competently
demonstrated by lay observation. See Savage, 10 Vet. App. at
495. For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." 38 C.F.R. § 3.303(b).
If the disorder is not chronic, it may still be service
connected if the disorder is observed in service of an
applicable presumptive period, continuity of symptomatology
is demonstrated thereafter, and competent evidence relates
the present disorder to that symptomatology. Savage, 10 Vet.
App. at 496-97. Again, whether medical evidence or lay
evidence is sufficient to relate the current disorder to the
in-service symptomatology depends on the nature of the
disorder in question. Id.
An X-ray of the veteran's left shoulder taken in connection
with the April 1999 VA examination revealed significant
widening of the acromioclavicular joint which was probably
post-traumatic, smoothly corticated fragment at the acromion,
perhaps related to an old fracture, and irregularity along
the corocoid process that may be related to old trauma. Upon
examination, his left shoulder was not tender to palpation or
with motion, and upon range of motion (ROM) testing, he had
forward flexion to 180 degrees, extension to 90 degrees, and
external rotation to 90 degrees. He had no weakness or pain
even with repetitive motion against resistance.
In addition to the lack of current findings, there is also no
medical evidence in the record that demonstrates a continuity
of symptomatology for his left shoulder condition since
service. There is no history of complaints of left shoulder
symptoms or reports to treating professionals that he injured
his shoulder while in service, which would indicate
chronicity of symptoms. Furthermore, the Board notes that
the veteran had a motor vehicle accident in 1979. No medical
opinion has been offered to explain any intercurrent
injuries. Moreover, the record does not contain a conclusion
from the examiner as to whether this shoulder injury occurred
while the veteran was in service, or whether this injury
could have happened in the way the veteran described in both
his statements and at the March 2005 hearing. There is
therefore no basis for deciding that this shoulder injury is
service-connected.
Accordingly, the Board concludes that the preponderance of
the evidence is against the claim for service connection, and
the benefit of the doubt rule enunciated in 38 U.S.C.A. §
5107(b) is not for application. In this case, for the
reasons and bases discussed above, a reasonable doubt does
not exist regarding the veteran's claim that a left shoulder
disability is related to service. There is not an
approximate balance of evidence.
Residuals of Frostbite of the Feet
The veteran alleges that he currently suffers from residuals
of frostbite of the feet, sustained while he was stationed in
Korea. He reported that many of the people in his unit
suffered frostbite while in the military and thought that he
may have, but was unable to remember for sure. He told the
April 1999 VA examiner that his unit did not get adequate
footwear during the winter, but was not able to give further
details. Additionally, the veteran has submitted an undated
newspaper article detailing how veterans of the Battle of
Chosin Reservoir in North Korea are compensated for the long-
term effects of frostbite as service-related injuries. These
articles are not probative evidence as they do not
specifically relate to the veteran's particular case and in
particular do not contain any analysis regarding the
veteran's alleged exposure to extreme cold conditions and the
possible relationship to his current condition. Medical
treatise evidence can, in some circumstances, constitute
competent medical evidence. See Wallin v. West, 11 Vet. App.
509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) (competent
medical evidence may include statements contained in
authoritative writings such as medical and scientific
articles and research reports and analyses). However, as
discussed by the Board above, the Court has held that medical
evidence that is speculative, general or inconclusive in
nature cannot support a claim. See Obert, supra; see also
Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine
v. Brown, 9 Vet. App. 521, 523 (1996).
Although the veteran complained of numbness at the VA
examination in April 1999, he had no pain, ulcerations,
blisters, or cold sensation. On exam, both feet were grossly
normal to inspection, there was no abnormal color, no skin
breakdown or abnormal calluses, normal temperature, no
evidence of infection, and ranges of motion and strength were
both intact. An x-ray of the veteran's feet performed in
April 1999 showed a calcaneal plantar and Achilles tendon
spurs, as well as mild bunion deformity on the left, but
showed no evidence of lysis of the tufts, which would
indicate a previous cold injury.
In May 1999, the appellant complained of bilateral foot
numbness for over 30 years. He specifically complained that
his feet felt cold and hot at times, and that he had been
exposed to cold during the winter while in the Korean War.
He denied a history of diabetes or thyroid disease, as well
as any history of weakness. Physical examination showed
normal strength and sensation in his bilateral legs, except
for decreased pin sensation in his bilateral dorsal and
plantar feet. Vibration sense was not present in his great
toes, but was normal in his ankles and proprioception in his
toes. His ankles and toes were downgoing. A nerve
conduction study performed at the time of the May 1999
electrodiagnostic evaluation revealed evidence of moderately
severe distal bilateral sural mononeuropathy, but there was
no electrodiagnostic evidence of a polyneuropathy, nor was
there a mention of the cause of this mononeuropathy.
Here, no medical expert has concluded that the veteran's
current disability of the feet is etiologically related to
service or to any incident occurring in service. Although
the veteran has been given the opportunity to submit
competent medical evidence in support of his claim, he has
not done so; nor does the current record reflect any
competent medical evidence of a nexus between his current
foot complaints or symptoms and service. The Board notes
that the duty to assist is not always a one-way street. If
the veteran wants help, he cannot passively wait for it in
those circumstances where he may or should have information
that is essential in obtaining the putative evidence. See
Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The
currently diagnosed moderately severe distal bilateral sural
mononeuropathy is not shown by competent medical evidence to
have been present in service or for many years afterward.
See Forshey, supra.
Accordingly, the Board concludes that the preponderance of
the evidence is against the claim for service connection, and
the benefit of the doubt rule enunciated in 38 U.S.C.A. §
5107(b) is not for application. In this case, for the
reasons and bases discussed above, a reasonable doubt does
not exist regarding the veteran's claim that residuals of
frostbite of the feet are related to service. There is not
an approximate balance of evidence.
ORDER
Entitlement to service connection for arthritis of the knees
is denied.
Entitlement to service connection for arthritis of the low
back is denied.
Entitlement to service connection for residuals of pneumonia
is denied.
Entitlement to service connection for impaired hearing is
denied.
Entitlement to service connection for a perforated left ear
drum is denied.
Entitlement to service connection for a left shoulder
disability is denied.
Entitlement to service connection for residuals of frostbite
to the feet is denied.
____________________________________________
PANAYOTIS LAMBRAKOPOULOS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs